Archive for July, 2012

I have more on the revelations about Roberts’s switch. Among other things, I note that the story that some of the leaking justices/clerks want to tell — about Roberts being “bullied” by the mean liberal media — doesn’t make any sense:

The other key question raised by Crawford’s scoop is Roberts’s motivation. Some conservatives are trying to sell the idea that Roberts was unduly influenced by the dread Liberal Media. A credulous Peter Suderman sees this spin as plausible, suggesting that “the Chief Justice of the Supreme Court was bullied into changing his position.”

But even leaving aside the obvious fact that liberal op-eds are not in a position to “bully” a Supreme Court Justice—there’s very little reason to believe that this had a significant effect on Roberts. Roberts could not have been surprised that liberal editorialists would object to striking down the signature domestic policy of an incumbent administration for the first time in nearly 80 years would produce substantial criticism, and his sensitivity to the liberal media has not been demonstrated previously during a tenure in which he’s cast conservative votes with remarkable consistency.

As I say, I think it’s that Roberts actually took his image of himself in John Marshall seriously. And while I think he’s wrong to think that striking down the ACA would have significantly affected the legitimacy of the Court and is also wrong to think that his commerce clause dicta will significantly constrain future courts, what matters is not whether these perceptions are right but whether Roberts believes them. I assume that he, like a lot of legal elites, does.

A final bit of speculation about the wages of conservative maximalism: if Roberts was concerned about the Court being seen as too partisan, Scalia spending the oral arguments reading Glenn Beck transcripts couldn’t have helped and may have planted some doubt in Roberts’s mind. As I’ve said several times before, Thomas’s silence during oral argument is sometime used to portray him inaccurately as some kind of unqualified bumpkin, but actually reflects a much more sophisticated view of the significance of oral arguments than Scalia’s vain grandstanding, which in this case if it mattered at all was almost certainly counterproductive.

Gov. Luthor turns down the Medicaid money. To be clear, Scott’s position is that poor people should be stricken with debilitating illnesses and in some cases die unnecessarily because he has a (really dumb) political point to make.

Eventually, I think (as happened with the original Medicaid) all of the states will come on board. Once the question is spending powers the interests of the poor become united with the interests of various parts of the health care lobby. But there will be short-term resistance, and especially in the one-party Republican states it could last far longer than it should.

Doubling down on her contrarian take on the Supreme Court and the PPACA, Marcia Angell provides as undiluted a version of the BULLY PULPIT fallacy as we’re likely to see:

On July 22, 2009, Obama said in a press conference, “Now, the truth is that unless you have what’s called a single-payer system in which everybody is automatically covered, then you’re probably not going to reach every single individual.” Bingo. Too bad he didn’t hang on to that insight, and use his rhetorical skills to make the case strongly to the American public. If he had fought for single-payer health care at the beginning of his administration, while he had both houses of Congress, and mobilized public opinion behind it, he might have made it. After all, the only thing members of Congress need more than industry money is votes.

Other than the fact there’s absolutely no evidence that presidents can change public opinion in this way, and the fact that Bayh, Nelson, Lieberman, etc. do not in fact need “votes more than money” since they’re not running for anything (and who thinks that winning votes and money are entirely unconnected anyway?) — hard to see any problems with this plan. I mean, this “going public” strategy sure worked well for Clinton, and Obama’s rhetorical skills sure did make the PPACA immensely popular.

The strangest thing about this kind of BULLY PULPIT argument is that people who seem to consider themselves tough-minded leftists have beliefs about American political institutions that are like caricatures of the most naive 1950s-style pluralists. I’m amazed anybody who considers themselves to have a critical attitude towards the status quo could implicitly deny that “[t]he flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent.” I’m also frustrated that getting a rational health care policy in the United States isn’t viable, but “forgetting” that hegemony exists is not actually going to facilitate change, and to the extent that it requires passing up opportunities to pass useful reform measures it actually makes things worse. Plans to transform American domestic politics that involve heroic presidential daddies imposing major social change on powerful interests by sheer force of will are indistinguishable from having no plan at all.

If you haven’t yet seen it, Corey Robin, Chris Bertram, and Alex Gourevich have a magnificent, epic post at CT on freedom and the workplace in the context of an ongoing conversation with the bleeding heart libertarians blog. I won’t bother to excerpt it; it’s all good, read the whole thing, etc etc.

One good way to conceptualize the massive blind spot of the BHL crowd here is their insistence on focusing on government rather than governance. Employers are engaged in a form of governance. Governance, as libertarians constantly remind us in other contexts, is a dangerous thing indeed; far too dangerous for a exit right that often amounts to empty formalism to manage. The particular nature of the dangers of corporate workplace governance are obviously somewhat different than the governance of governments, and as such the particular form of democratic control ought to reflect that difference. The Elizabeth Anderson post on BHL I recently linked to made a similar point well: “a more illuminating conceptual map would identify government with any organization in which some people systematically issue authoritative commands, backed up by penalties, to others.”

Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

I believe the reporting; Crawford is well-connected, and if you can overlook her sympathy with Federalist Society legal views her book was actually very good and had a lot of interesting nuggets. Granted, you can see some elements of her biases here — Kennedy has been “remarkably consistent” on federalism cases ? — but I have no reason to doubt that she has the story right here.

There’s some other interesting stuff too — most notably, the dissent was written independently from Roberts, was written jointly, and ignored Roberts out of pique, all of which makes sense to me.

…I also agree with Linda Greenhouse that the clerks in the neoconfederate chambers pretty clearly leaked the word of Roberts’s switch before the fact, and the timeline established by Crawford adds further proof. There’s no way all those op-eds making the same arguments about the pressure on Roberts coming out right after he switched were a coincidence.

Now that the constitutional questions regarding the ACA have been surprisingly determined, attention is shifting to the political implications that this has for November. I’ve built a little (emphasis on little) dataset to casually explore this issue. In the near future I hope to both examine this on a case-by-case basis as well as add a few additional variables that have come to mind, data availability permitting.

The two key variables in the dataset are state level support for the ACA and the percentage uninsured in the state. My source for the former is from a paper written by Richard Gonzales, a doctoral candidate at Harvard’s Department of Health Care Policy, which was discussed here at The Incidental Economist. Gonzales estimates state level support from national Gallup data over a six month period (September 2009 to March 2010). As this is an estimate, it does introduce an additional layer of uncertainty into the model, but it’s the best data I could find. The point estimates and error bands appear sound in terms of face validity; the highest levels of support are found in New York, Hawaii, and Vermont, with the lowest in Oklahoma and Wyoming. The public opinion data are old, but Monkey Cage suggests (and we all pretty much agree on) public opinion on the ACA has been relatively stable. Percentage uninsured by state level is courtesy of Gallup, which are available here.

The first pass at the data is to run a simple bivariate correlation. Gallup give us uninsured rates for 2008, 09, and 10; for simplicity I take the average of the three. The mean is 16.2%, the range 4.6% to 26.6%. The (state level, N=50) mean of support for the ACA is 48%, range 32% to 63%. Support for the ACA and percentage uninsured are correlated at -.50. Meaning, as uninsured goes up by state, support for the ACA declines. The regression estimate is -0.93 (essentially for every one point increase in uninsured, there is a one point decrease in support).

This is obviously counter intuitive, and not the full story. Hence, I’ve added the change in uninsured from 2008 to 2010 (percentage point change, thanks to commenter Fake Irishman for the observation), the PVI of the state (Cook Partisan Voting Index, a measure of how partisan a jurisdiction is and in which direction), and the percentage of the vote received by Obama in the 2008 election. Shockingly, the latter two enjoy a very close relationship (correlated at .98) as the PVI is in part calculated from the 2008 election results, so in running the multivariate regression models, I ran one with PVI and one with percentage vote for Obama. Models were estimated with both the average uninsured from 2008-10 as well as each specific year’s data, and it makes no difference. The first model below includes PVI, the second the percentage vote for Obama in 2008.

The dependent variable is the percentage by state in support of the ACA. PVI ranges from -20 to +13 with a mean of -2.5 (I’ve normed Republican PVIs as negative not because, well, I’m not a Republican, but rather it’s more intuitive: I’m assuming Republican states are going to be less supportive of the ACA than Democratic states. It’s sharp insights like this that a Ph.D. in political science equips me to make). Chg is the percentage point change in uninsured from 2008-10, mean 1.9%, range -2.3% to +4.9%.

Here we can see the original bivariate results have been flipped. First, you’ll note only one of the three variables is significant. I make an argument I’ve made countless times before: it doesn’t matter. I’m dealing with the universe of data in these models, so slavishly bowing to the cult of significance is not relevant, but for those who care the standard errors and t-tests are included. Percentage of uninsured, and the percent change in uninsured both have positive relationships with support for the ACA. Put another way, as the percentage of uninsured increases, so too does support for the ACA. Likewise, as the percentage of people uninsured grows, so does support for the ACA . . . while controlling for the partisanship of the state in question. The partisan inclination of the state is the single strongest predictor in this model, which is informative.

This model replaces PVI with state level vote for Obama in 2008 (mean 50.52%, range 32.54% to 71.85%). This model is consistent with the PVI model, so doesn’t require additional discussion.

These are not groundbreaking findings. With the usual caveats about the ecological fallacy, support for the ACA is mediated through a pre-existing political prism: Democrats are more likely to support it, and Republicans less likely. The lesson for the Obama administration should be, post Supreme Court ruling, seize the initiative to frame the issue among independents, but simultaneously focus on the base. Because of the aforementioned case, the administration has been unable to frame the issue, and while running out of time, now is the time. The second lesson I take away from this is that, as much as Dave Noon and I mocked the ignorant on facebook using this little quiz, outside of independents who think health care is a salient issue (I’m betting that this is a small percentage), the facts of the issue are not going to sway a significant percentage of the electorate.

As we know about the Republicans, this isn’t about the facts or about good public policy. It’s politics, about winning and losing. This is how we have the hilarious situation of Mitt Romney running against what is, essentially, his own policy. Not ironically, Massachusetts anchors the low end of the range on percentage uninsured at 4.6%. That’s a talking point worth exploiting.

I do want to add a few more variables to this little dataset as well as look closer at the states in question, especially swing states. But right now,there’s the small matter of Spain v Italy to attend to.

The necessity of corporate support for, or at least acquiescence to, liberal policies is not a new development in the history of American liberalism. Indeed it has been one of its hallmarks.

Roosevelt may be remembered for his combativeness toward corporations; he famously said, “I welcome their hatred.” But he said that in 1936, only after key New Deal legislation had passed with the help of the United States Chamber of Commerce and the American Bankers Association.

Early on, Roosevelt was quite adept at bargaining with corporations. In his first 100 days, to attract corporate support for the National Industrial Recovery Act, he won collective bargaining, minimum wages and maximum hours in exchange for a temporary suspension of antitrust law, so businesses could fix prices. To establish the Securities and Exchange Commission in 1934, he made concessions to Wall Street that scrapped statutory requirements in favor of regulatory flexibility. The following year, to allow the Federal Reserve to better conduct monetary policy, he gave bankers representation on the policy committee.

Johnson also found little value in warring with corporations. He won a Keynesian tax cut in early 1964, defeating budget-conscious conservatives, thanks to a broad coalition that included corporations. He attracted business support to back his first antipoverty bill by junking plans to promote family farming and push businesses to hire long-term unemployed people. He created the Transportation Department, in 1966, only after exempting resistant shipping interests from its jurisdiction. He incited a new era of environmental protection, increasing federal responsibility for cleaning air and water, while defusing corporate opposition by trading away federal pollution standards.

Major economic national reform in this country has always required buying off entrenched interests that enormously influence the multiple veto points that can derail legislation. This is nothing to be happy about, but direct your complaints to James Madison.